49 W. Va. 184 | W. Va. | 1901
Ward & Blankenship filed in the circuit court of Mingo County a petition against Ira Evans and others asking a writ of prohibition to prohibit the enforcement of a judgment against Ward & Blankenship rendered by Ira Evans, justice, in favor of William Evans, and the circuit court having dismissed the petition on demurrer, Ward & Blankenship brought the case to this Court by writ of error.
The petition states that Ward & Blankenship employed one Harris to furnish them logs, and that Harris employed William Evans to do certain work for him, and made debts with Evans, the work and debts being unknown to the petitioners; that Harris left the State and Evans sued Harris for a debt of forty dollars, and garnisheed Ward & Blankenship as debtors of Harris; that on the return day of the attachment Evans dismissed it, and at once brought three separate suits against-Ward & Blankenship for an amount less than the appellate jurisdiction of the circuit court, in which judgments were rendered for Evans, but which were prohibited from enforcement by a writ of prohibition in the circuit court, without prejudice to Evans to bring another suit; that immediately Evans brought a suit before a justice against Ward & Blankenship and recovered a judgment for fourteen dollars and forty cents, with interest and costs. This is the judgment sought to be prohibited. The petition states that Evans introduced no evidence, to show any liability or even tend
One theory of the petitioners is that there was no cause of action against them, because if there was any liability to pay the debt of Harris, it was not evidenced by writing, and therefore there could be no judgment against Ward & Blankenship. As a justice has jurisdiction of actions for the recovery of money, any error such as that attributed would be error of judgment. A writ of prohibition does not lie to correct mere error. Is every error of a justice to call for prohibition? The case of Norfolk and Western Railroad Co. v. Pinnacle Coal Co., 44 W. Va. 574, cannot aid the case, because the justice there gave judgment under a repealed statute, and the court held that the repeal took away his jurisdiction. That case depends upon its peculiar facts. So does Yates v. County Court, 35 S. E. 24, where a justice gave judgment against a county for attorney’s fees in defending criminals, when there was no law for it, and besides, the claim had never been presented to the county court, a precedent condition to an action, without which no action could be maintained.
Another theory to support the prohibition is that the creditor assigned part of his demand, retaining only part, and did so to prevent an appeal from the justice. It is very well settled that one may waive a portion of the amount in controversy where it is greater than the court’s jurisdiction, in order to confer jurisdiction, if it is done without fraudulent intent. 1 Ency. Pl. & Prac. 707. That is a release of the balance of the debt. As the whole debt was within the jurisdiction of a justice, he could remit a part, though the balance would not warrant an appeal. He could not divide his demand and bring several suits for it. Hale v. Weston, 40 W. Va. 313. But could he not waive a part of it? He could not divide one demand and assign it to several parties just to get it small enough to bring a suit in a court of smaller jurisdiction. Archibold v. Bodley, 33 W. Va. 239. A remittitur is often permitted where its
Affirmed.